Dozy tribunal member takes a return flight to the land of nod

HR professionals know that tribunals can be lengthy and tiring, and require great feats of concentration. But what happens when a tribunal member actually falls asleep during a hearing?

Last week, it emerged that a tribunal ‘wing member’ had apparently nodded off not just once, but twice, during a hearing last year to discuss the unfair dismissal claim of Fordyce v Hammersmith and Fulham Conservative Association.

During the hearing last March, the association’s lawyer noticed that one of the wing members – two supporting members who flank the tribunal chair-person – appeared to have been asleep “for a significant part of the evidence during the second morning of the hearing and after discussion at lunch time”.

The first time he nodded off, the association’s lawyer raised the problem with the tribunal, but both sides agreed to continue. However, after the tribunal threw out Fordyce’s unfair dismissal claim, her lawyer appealed, citing the second time the wing member fell asleep.

In a ruling last week, the Employment Appeal Tribunal (EAT) held that, by initially agreeing to continue, Fordyce’s lawyer had waived the right to object to the initial episode. But the right to object arose again when the wing member dozed off a second time. The EAT ordered a rehearing.

Eyes wide shut: in defence of old sleepy head

According to the EAT, the wing member “continued to turn to the correct page… when directed by counsel” but said that this could have been “the knee-jerk reaction that many a school child has learned over the years”. The tribunal chairwoman didn’t notice he was asleep as “he was not in her line of vision and he made no sound”.

But the tribunal’s other wing member leapt to his colleague’s defence, stating he “does tend to sit with his eyes closed, or seemingly closed, and this led me to think this was his way of concentrating on the proceedings”.